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Thursday, November 8, 2018

"Cases Pending" Highlights Civil Cases to be Heard During Illinois Supreme Court's November Term

The Illinois Supreme Court's November Term begins Monday, November 12, 2018, with oral arguments scheduled for November 13, 14, and 20, 2018. A total of 11 cases will be heard -- 4 criminal and 7 civil. The following 7 civil cases are scheduled for argument this term:

November 13, 2018:

In re Marriage of Fatkin, No. 123602 The City of Chicago v. The City of Kankakee, No. 122878 Better Government Association v. City of Chicago, No. 122949

Below is a summary for two of the civil cases, Better Government Association v. City of Chicago and Peach v. McGovern. Summaries for this case and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

FREEDOM OF INFORMATION ACT

Better Government Association v. City of Chicago, No. 122949

Two issues are presented in this appeal: (1) whether it is appropriate to enter a protective order prohibiting the release of records pursuant to a non-party’s FOIA request; and (2) whether records of the Office of the Special Prosecutor fall within the FOIA exemption for “matters occurring before the grand jury.”

In 2004, Richard J. Vanecko, a relative of former City of Chicago Mayor Richard M. Daley, allegedly assaulted David Koschman, who later died. No charges were initially filed following the alleged assault, but Mr. Koschman's family successfully petitioned for the appointment of a special prosecutor to investigate whether criminal charges were warranted.

While a grand jury was empaneled, the Office of Special Prosecutor (OSP) moved for a protective order “to prevent entities like the City from complying with the FOIA requests for secret grand jury materials that would inevitably end up in its hands.” The motion was granted and protective order was entered.

An indictment later was issued against Vanecko and the City requested that the protective order be unsealed to comply with a FOIA request made by the Chicago Sun-Times. The motion was granted. Uncertainty followed regarding what records were covered by the court’s protective order, and a second protective order was entered prohibiting the City from complying with any FOIA request that would identify or characterize documents that were “disseminated to the [OSP] in furtherance of” the grand jury investigation.

The Better Government Association (BGA) later sent a FOIA request to the City seeking documents that were specifically protected by the protective order. The City denied the requests under section 7(1)(a) of FOIA, which exempts documents from disclosure if disclosure if prohibited by “State law.” The BGA then filed a complaint for injunctive and declaratory relief for release of the documents. The City filed a motion to dismiss, which was denied on the ground that the protective order was not “State law” for purposes of FOIA.

The First District Appellate Court affirmed the trial court’s order entering the protective order as it was necessary to protect certain aspects of the grand jury’s investigation, which is expressly permitted under the FOIA statute.

The appellate court then held that the City did not have the authority to later release those records requested under the FOIA statute because the protective order prohibited their release. The appellate court relied on decisions of the United States Supreme Court holding that the broad purposes of the FOIA statute are subordinate to a court order prohibiting release of the requested documents for certain purposes.

In its petition for leave to appeal, the BGA argued that the court incorrectly relied on federal cases rather than decisions of the Illinois Supreme Court. It argued that the appellate court opinion “seemingly allow[s] individual judges to create new FOIA exemptions that are not found in the statute, both through the issuance of protective orders and through a finding that withholding a record would not be ‘improper.’” It also argued that the opinion ignored the general proposition that FOIA exemptions must be “narrowly construed” in favor of disclosure.

STANDARD OF REVIEW

Peach v. McGovern, No. 123156

The issues in this appeal are: 1) whether the appellate court applied the wrong standard of review (manifest weight of the evidence) when it effectively entered judgment n.o.v. for the plaintiff and 2) whether expert testimony is necessary to admit photographic evidence of a car accident.

Plaintiff sued defendant after defendant rear-ended plaintiff while plaintiff was stopped at a stop sign. At trial, plaintiff testified that the impact was hard enough to push his car into the intersection about 5 to 10 feet. Plaintiff estimated that defendant was traveling 20 to 25 miles per hour. Defendant testified that she was fully stopped behind plaintiff and that the collision occurred when her foot slipped off of the brake. Photographs, which were admitted over plaintiff’s motion in limine, showed that the car suffered minimal damage. Plaintiff claimed that the collision caused him chronic neck pain, and plaintiff’s expert testified that plaintiff’s neck pain was caused by the collision. Plaintiff’s expert testified that even low-speed collisions could cause plaintiff’s neck pain. The trial court directed a verdict for plaintiff on the issue of negligence, leaving only the issues of causation and damages to the jury. The jury returned a verdict in favor of defendant and awarded plaintiff no damages.

The appellate court reversed. The court first held that the trial court abused its discretion in admitting the photographs of plaintiff’s car because, without expert testimony describing the relationship between the damage to the car and plaintiff’s injuries, the photographs were irrelevant. The court acknowledged that the photos might have been relevant to show the speed of defendant’s car, but found that the issue of speed was irrelevant in light of plaintiff’s unrebutted medical evidence that his injuries could have been caused by a low-speed collision.

The court also held that the jury’s verdict was against the manifest weight of the evidence and that the trial court should have directed a verdict for plaintiff on the issue of causation in light of plaintiff’s unrebutted medical evidence. The court said that no reasonable jury would have declined to at least award plaintiff his medical expenses.

In its petition for leave to appeal, defendant argues that the appellate court erred in applying the manifest-weight-of-the-evidence standard of review rather than the more stringent standard of review applicable to judgments n.o.v. Defendant also argues that judgment n.o.v. was inappropriate where there were credibility and fact questions raised at trial. Finally, defendant contends that the appellate court incorrectly demanded expert testimony for the admission of photographic evidence, as such evidence was relevant to the nature and extent of plaintiff’s injuries.

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